King v. Gage

United States District Court, D. Nebraska

March 30, 2016

BUD LEE KING, Petitioner,v.BRIAN GAGE, Warden, Respondent.

MEMORANDUM AND ORDER

Richard G. Kopf Senior United States District Judge

Bud Lee King (King) has filed a Petition for Writ of Habeas Corpus under the provisions of 28 U.S.C. § 2254. Respondent has filed a motion for summary judgment claiming that the one-year statute of limitations found in 28 U.S.C. § 2244(d) bars King’s petition. King does not dispute, and, there is otherwise no doubt, that the statute ran before he filed this action.

Since King has failed to establish (1) that the limitations period was tolled by a state-created impediment violating the Constitution or federal law as recognized by 28 U.S.C. § 2244(d)(1)(B)[1] or (2) that (a) he was pursuing his rights diligently, and (b) some extraordinary circumstance stood in his way and prevented a timely filing, the motion for summary judgment will be granted and the petition will be denied and dismissed with prejudice. See, e.g., Finch v. Miller, 491 F.3d 424, 426-428 (8th Cir. 2007).

UNDISPUTED FACTS

The undisputed material facts are these:

1. In 2011, pursuant to a plea agreement, Bud King pled no contest to two counts of attempted first degree sexual assault regarding a 12–year–old girl. He was sentenced to a term of not less than 20 years’ to not more than 20 years’ imprisonment for each of the convictions. The convictions were ordered to be served consecutively. State v. King, No. A–13–742, 2014 WL 3585502 (Neb. Ct. App. 2014) (denying post-conviction relief where King asserted “numerous postconviction claims, including two allegations of trial court error, four allegations of ineffective assistance of trial counsel, and two allegations of ineffective assistance of appellate counsel.”)

2. On direct appeal, the Court of Appeals summarily affirmed his conviction, King sought further review in the Nebraska Supreme Court, that review was denied, the mandate issued on June 27, 2012 (filing no. 12-1 at CM/ECF p. 2.), and the 90 days for seeking review in the Supreme Court expired on September 25, 2012. The time then began to run.

3. King sought postconviction relief on April 3, 2013. (Filing no. 2.) The time between September 25, 2012, and April 3, 2013, is 190 days and that time counts against King. On April 3, 2013, the clock stopped with the filing of the postconviction action.

4. The Nebraska Court of Appeals denied King relief, King sought further review in the Nebraska Supreme Court, that request was denied, and the mandate issued on November 25, 2014 (filing no. 12-1 at CM/ECF p. 5), at which time the clock began to run again.[2]

5. This action was filed on September 21, 2015 (filing no. 1), but the postmark shows that it was received by the post office on September 1, 2015. (Filing no. 1 at CM/ECF p. 21.) The time between November 25, 2014 (the date of the issuance of mandate denying postconviction relief) and September 1, 2015 (the date the petition was dated and submitted to the post office[3]) is 280 days.

6. The total elapsed time that counted against King is 470 days (190 plus 280).

7. The claims asserted in the state postconviction action, as summarized by the Nebraska Court of Appeals, and the claims, as summarized in this case, are very similar. (Filing no. 9 (initial review by the court).)

ANALYSIS

Summarized and condensed, King argues that he ought not be bounced (1) because he was in segregation a good bit of the time which meant he could not freely access the law library; (2) because he was only able to go to the law library once a week for one hour and some weeks he was not able to go to the library at all; (3) because he was shackled when he went to the law library and only had one hand free; (4) because he had to remain in his chair and at his table when he went to the law library; (5) because he had “virtually no assistance from prison legal aides”; and (6) because there was a prison riot that caused a ...

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